Changes from plenary report to adopted text

AddedFollowing the notification of the written recommendation of FRAND terms and conditions by the conciliatorpanel of conciliators, either party shall submit a detailed and reasoned proposal for a determination of FRAND terms and conditions. If a party has already submitted a proposal for the determination of FRAND terms and conditions, revised versions shall be submitted, if necessary, taking into account the recommendation of the conciliatorpanel of conciliators. [Am. 225]

AddedArticle 53 Oral procedure

AddedIf the conciliatorpanel of conciliators considers it necessary or if a party so requests, an oral hearing shall be held within 20 days after the submission of reasoned proposals for determination of FRAND terms and conditions. [Am. 226]

AddedArticle 54 Disclosure of information

Added1. When the conciliatorpanel of conciliators receives information for the purposes of FRAND determination from a party, it shall disclose it to the other party so that the other party has the opportunity to present any explanation. [Am. 227]

Added2. A party may request the conciliatorpanel of conciliators that specific information in a submitted document is kept confidential. [Am. 228]

Added3. When a party requests the information in a document it had submitted to be kept confidential, the conciliatorpanel of conciliators shall not disclose that information to the other party. The party invoking confidentiality shall also provide a non-confidential version of the information submitted in confidence in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. This non-confidential version shall be disclosed to the other party. [Am. 229]

AddedArticle 55 Reasoned proposal for a determination of FRAND terms and conditions by the conciliator

Added1. At the latest 45 days before the end of the time limit referred to in Article 37, the conciliatorpanel of conciliators shall submit a reasoned proposal for a determination of FRAND terms and conditions to the parties or, as applicable, the party requesting the continuation of the FRAND determination. [Am. 230]

Added2. Either party may submit observations to the proposal and suggest amendments to the proposalwithin a deadline set by the conciliatorpanel of conciliators, who may reformulate its proposal to take into account the observations submitted by the parties and shall promptly inform the parties or the party requesting the continuation of the FRAND determination, as applicable, of such reformulation. [Am. 231]

AddedArticle 56 Termination of the FRAND determination and notice of termination

Added1. In addition to the termination of the FRAND determination for reasons provided for Article 38(4), Article 44(3), Article 45(5), Article 46(2), point (b), Article 46(3) and Article 47(2), the FRAND determination shall be terminated in any of the following ways:

Added(a) a settlement agreement is signed by the parties;

Added(b) a written declaration is signed by the parties accepting the reasoned proposal for a determination of FRAND terms and conditions by the conciliatorpanel of conciliators referred to in Article 55; [Am. 232]

Added(c) a written declaration is made by a party not to accept the reasoned proposal of a determination of FRAND terms and conditions by the conciliatorpanel of conciliators referred to in Article 55; [Am. 233]

Added(d) a party has not submitted a reply to the reasoned proposal of a determination of FRAND terms and conditions by the conciliatorpanel of conciliators referred to in Article 55. [Am. 234]

Added2. In case of termination of the FRAND determination, the competence centre shall adopt a notice of termination of the FRAND determination and notify the parties within 5 days from termination. The notice of termination shall include the names of the parties and the conciliator, the subject-matter of the FRAND determination, a summary of the procedure and the reasons for its termination.

Added3. The notice of termination notified to the SEP owner shall be considered to constitute a document within the meaning of Article 6(3) point (c) of Regulation (EU) No 608/2013 with regard to any request for a customs action against goods suspected to infringing its SEP.

Added4. A competent court of a Member State, asked to decide on determination of FRAND terms and conditions, including in abuse of dominance cases among private parties, or SEP infringement claim concerning a SEP in force in one or more Member States subject to the FRAND determination shall not proceed with the examination of the merits of that claim, unless it has been served with a notice of termination of the FRAND determination, or, in the cases foreseen in Article 38(3)(b) and Article 38(4)(c), with a notice of commitment pursuant to Article 38(5). [Am. 235]

Added5. In the cases foreseen in Article 38(3)(b) and in Article 38(4)(c), Article 34(5) shall apply mutatis mutandis in the proceedings before a competent court of a Member State.

AddedArticle 57 Report

Added1. The conciliatorpanel of conciliators shall provide the parties with a written report following the termination of the FRAND determination in cases listed in Article 56(1), point (c) and Article 56(1), point (d). [Am. 236]

Added2. The report shall include the following:

Added(a) the names of the parties;

Added(b) a confidential assessment of the FRAND determination;

Added(c) confidential summary of the main issues of disagreement;

Added(d) a non-confidential methodology and the assessment of the determination of FRAND terms and conditions by the conciliatorpanel of conciliators. [Am. 237]

Added3. The confidential report shall be available only to the parties and to the competence centre. The competence centre shall publish the non-confidential report in the database.

Added4. Either party to the FRAND determination may file the report in any proceedings before a competent court of a Member State against the other party to the FRAND determination, notwithstanding any procedural bar.

AddedArticle 58 Confidentiality

Added1. Except the methodology and the assessment of the FRAND determination by the conciliatorpanel of conciliators referred to in Article 57(2), point (d), the competence centre shall keep confidential the determination of FRAND terms and conditions, any proposals for determination of FRAND terms and conditions submitted during the procedure and any documentary or other evidence disclosed during the FRAND determination which is not publicly available, unless otherwise provided by the parties. [Am. 238]

Added2. Notwithstanding paragraph (1), the competence centre may include information concerning the FRAND determination in any aggregate statistical data that it publishes concerning its activities, provided that such information does not allow identification the parties or the particular circumstances of the dispute to be identified.

AddedTitle VII Procedural rules

AddedArticle 59 Communications to and notifications from the competence centre

Added1. The communication to and notifications from the competence centre shall be conducted in principle by electronic means.

Added2. The Executive Director of the EUIPO shall determine to what extent and under which technical conditions communications and notifications referred to in paragraph (1) are to be submitted electronically.

AddedArticle 60 Time limits

Added1. Time limits shall be laid down in terms of full years, months, weeks or days. Calculation shall start on the day following the day on which the relevant event occurred.

Added1a. The period specified in days ends on the last day, a period marked in weeks ends at the end of the day in the last week, a period specified in months ends on the expiry of the day corresponding to the initial day of the period, and if there was no such day in the last month - then on the last day of that month, a period marked in years ends on the expiry of the day corresponding to the initial day of a given period, and if there was no such day, the end date will be the last day of that month. [Am. 239]

Added2. The Executive Director of the EUIPO shall determine, before the commencement of each calendar year, the days on which the EUIPO is not open for receipt of documents or on which ordinary post is not delivered in the locality in which the EUIPO is located.

Added3. The Executive Director of the EUIPO shall determine the duration of the period of interruption in the case of a general interruption in the delivery of post in the Member State where the EUIPO is located or, in the case of an actual interruption of the EUIPO's connection to admitted electronic means of communication.

Added4. In cases of exceptional occurrences making the communication between the parties to the proceedings and the competence centre very cumbersome, the Executive Director of the EUIPO may extend all time limits that would otherwise expire on or after the date of commencement of such an occurrence, as determined by the Executive Director in relation to the following subjects:

Added(a) parties to the proceedings having their residence or registered office in the region concerned;

Added(b) representatives or assistants with a place of business in the region concerned, appointed by the parties.

Added5. When determining the length of extension referred to in the second subparagraph, the Executive Director of the EUIPO shall take into account the end date of the exceptional occurrence. If the occurrence referred to in the second subparagraph affects the seat of the EUIPO, the determination of the Executive Director of the EUIPO shall specify that it applies in respect of all parties to the proceedings.

AddedTitle VIII Micro, Small and Medium-size Enterprises

AddedArticle 61 Training, advice and support SEP Licensing Assistance Hub for SMEs and start ups [Am. 240]

Added1. The competence centre shall offer training and support on SEP related matters for micro, small and medium-size enterprisesset up and manage a SEP Licensing Assistance Hub for SMEs and start-ups which shall help the SMEs and start-ups with following tasks free of charge.: [Am. 241]

Added(a) identification of which SEPs might be relevant to their product or service, possible licensors and patent pools, in the event that the SME or the start-up is a SEP implementer; [Am. 242]

Added(b) identification of possible licensees and, with the help of the European Observatory on infringements of intellectual property rights, advise them on how to best enforce their SEP rights on European and global level, in the event that the SME or the start-up is a SEP holder; [Am. 243]

Added(c) offer training and support on SEP related matters. [Am. 244]

AddedThe competence centre shall not be held liable for any help provided to SMEs and start-ups under this paragraph. When performing the tasks referred to in this paragraph, the competence centre may work in close cooperation with national patent offices and governmental schemes that support SMEs. [Am. 245]

Added1a. The competence centre shall, on a regular basis, proactively seek input from SMEs and start-ups on what training and support would be most helpful. [Am. 246]

Added2. The competence centre may commission studies, if it considers it necessary, to assist micro, small and medium-size enterprisesSMEs on SEP related matters. Such studies may include analysis, based on information provided by SEP holders and implementers regarding licenses entered into, royalties paid or collected, and products sold for IoT applications, and the competence centre may provide estimates of licensing costs for such applications to SMEs. [Am. 247]

Added3. The costs of the services referred to in paragraph (1) and paragraph (2) shall be borne by the EUIPO and the EUIPO shall ensure that the services are sufficiently funded and resourced. [Am. 248]

Added3a. Paragraphs 1 and 2 shall not apply to patent assertion entities or to SMEs, which are a subsidiary, affiliate, or owned or directly or indirectly controlled by another natural or legal person that is not a SME itself. [Am. 249]

AddedArticle 62 FRAND terms for micro, small and medium-sized enterprises

Added1. When negotiating a SEP licence with micro, small and medium-sized enterprises, SEP holders shall consider offering to them FRAND terms and conditions that are more favourable than the FRAND terms and conditions they offer to enterprises that are not micro, small and medium-sized for the same standard and implementations.

Added2. IfWhen a SEP holder offers more favourable FRAND terms and conditions to micro, small and medium-sized enterprises, or concludes a SEP licence that includes more favourable terms and conditions, than those offered to companies that are not an SME pursuant to paragraph (1), such FRAND terms and conditions shall not be considered in a FRAND determination, unless the FRAND determination is conducted solely with regard to FRAND terms and conditions for another micro, small or medium-sized enterprise. [Am. 250]

Added3. SEP holders shall also consider discounts, spreading payments into interest-free instalments or royalty-free licensing for low sales volumes irrespective of the size of the implementer taking the licence. Such discounts or royalty-free licensing shall be fair, reasonable and non-discriminatory and shall be available in the electronic database as set out in Article 5(2), point (b). [Am. 251]